Theses and Dissertations (Jurisprudence)http://hdl.handle.net/10500/2874
Fri, 09 Dec 2016 15:28:46 GMT2016-12-09T15:28:46ZE-crimes and e-authentication - a legal perspectivehttp://hdl.handle.net/10500/21720
E-crimes and e-authentication - a legal perspective
Njotini, Mzukisi Niven
E-crimes continue to generate grave challenges to the ICT regulatory agenda. Because e-crimes involve a wrongful appropriation of information online, it is enquired whether information is property which is capable of being stolen. This then requires an investigation to be made of the law of property. The basis for this scrutiny is to establish if information is property for purposes of the law. Following a study of the Roman-Dutch law approach to property, it is argued that the emergence of an information society makes real rights in information possible. This is the position because information is one of the indispensable assets of an information society. Given the fact that information can be the object of property, its position in the law of theft is investigated. This study is followed by an examination of the conventional risks that ICTs generate. For example, a risk exists that ICTs may be used as the object of e-crimes. Furthermore, there is a risk that ICTs may become a tool in order to appropriate information unlawfully. Accordingly, the scale and impact of e-crimes is more than those of the offline crimes, for example theft or fraud.
The severe challenges that ICTs pose to an information society are likely to continue if clarity is not sought regarding: whether ICTs can be regulated or not, if ICTs can be regulated, how should an ICT regulatory framework be structured? A study of the law and regulation for regulatory purposes reveals that ICTs are spheres where regulations apply or should apply. However, better regulations are appropriate in dealing with the dynamics of these technologies. Smart-regulations, meta-regulations or reflexive regulations, self-regulations and co-regulations are concepts that support better regulations. Better regulations enjoin the regulatory industries, for example the state, businesses and computer users to be involved in establishing ICT regulations. These ICT regulations should specifically be in keeping with the existing e-authentication measures. Furthermore, the codes-based theory, the Danger or Artificial Immune Systems (the AIS) theory, the Systems theory and the Good Regulator Theorem ought to inform ICT regulations.
The basis for all this should be to establish a holistic approach to e-authentication. This approach must conform to the Precautionary Approach to E-Authentication or PAEA. PAEA accepts the importance of legal rules in the ICT regulatory agenda. However, it argues that flexible regulations could provide a suitable framework within which ICTs and the ICT risks are controlled. In addition, PAEA submit that a state should not be the single role-player in ICT regulations. Social norms, the market and nature or architecture of the technology to be regulated are also fundamental to the ICT regulatory agenda.
Thu, 01 Sep 2016 00:00:00 GMThttp://hdl.handle.net/10500/217202016-09-01T00:00:00ZA selection of legal issues relating to persons living with albinismhttp://hdl.handle.net/10500/21640
A selection of legal issues relating to persons living with albinism
Mswela, Mphoeng Maureen
Despite the fact that albinism affects several South Africans, it is a condition that
remains deeply misunderstood. Albinism is steeped in myth and false notions, and is
perceived by many as a curse and contamination. For years, persons living with
albinism have been treated with doubt and suspicion. Also in schools and in the
wider community, children with albinism are subjected to violence and ridicule. In
certain areas on the African continent, including Southern Africa, persons living with
albinism are killed for the trade in body parts for use as sacramental medicines, or
sexually assaulted as a result of the belief that raping them may offer a cure for
HIV/AIDS. All of this highlights the extreme vulnerability of persons living with
albinism, not to mention the many violations of their fundamental rights that follow
from the manner in which they are treated. Within the social context that frames the
experience of persons living with albinism, the primary purpose of this study is to
highlight some of the pertinent challenges faced by persons living with albinism in
South Africa which compromise the full enjoyment of their fundamental rights as
enshrined in the South African Constitution. The thesis makes a number of practical
recommendations that will assist in promoting the legal position of this vulnerable
group, while also contributing to a better understanding of albinism in general which
will ultimately change negative perceptions and debunk the myths surrounding the
condition.
Sun, 28 Feb 2016 00:00:00 GMThttp://hdl.handle.net/10500/216402016-02-28T00:00:00ZMinority rights and majority politics : a critical appraisalhttp://hdl.handle.net/10500/21147
Minority rights and majority politics : a critical appraisal
Dent, Kate Jean
In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles.
As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised.
The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy.
Tue, 01 Dec 2015 00:00:00 GMThttp://hdl.handle.net/10500/211472015-12-01T00:00:00ZThe SADC tribunal : its jurisdiction, enforcement of its judgments and the sovereignty of its member stateshttp://hdl.handle.net/10500/21074
The SADC tribunal : its jurisdiction, enforcement of its judgments and the sovereignty of its member states
Phooko, Moses Retselisitsoe
The Southern African Development Community Tribunal (the Tribunal) is the only judicial organ of the Southern African Development Community (the SADC). Its mandate includes ensuring “adherence to and the proper interpretation of the provisions of the Southern African Development Community Treaty” (the Treaty). The decisions of the Tribunal are final and binding in the territories of member states party to a dispute before it.
The responsibility to ensure that the decisions of the Tribunal are enforced lies with the Southern African Development Community Summit (the Summit). The Summit is the supreme policy-making body of the SADC. It comprises the Heads of State or Government of all SADC member states. The decisions of the Summit are binding on all member states and, upon referral from the Tribunal, it has the power to take appropriate action against a member state who refuses to honour a decision of the Tribunal.
The Tribunal was established primarily to deal with disputes emanating from the SADC’s economic and political units and not with human rights. A dispute concerning allegations of human rights violations in Zimbabwe was brought before the Tribunal by farmers affected by the country’s land-reform policy. The Tribunal, through reliance on the doctrine of implied powers, and the principles and objectives of the SADC as contained in the Treaty, extended its jurisdiction. In particular, the Tribunal found that it had jurisdiction to hear cases involving human rights violations and that there had indeed been human rights violations in the case before it. It consequently ruled against Zimbabwe. This decision has been welcomed by many within the SADC region as showing the Tribunal’s commitment to interpreting the Treaty in a way that does not run counter the rights of SADC citizens. However, the Tribunal’s decision has met with resistance from Zimbabwe and has not been implemented on the ground, inter alia, that the Tribunal acted beyond its mandate.
The Tribunal has on several occasions referred cases of non-compliance to the Summit for appropriate action against Zimbabwe. The Summit, however, has done nothing concrete to ensure that the Tribunal’s decisions are enforced in Zimbabwe. Instead, in an unexpected move that sent shockwaves through the SADC region and beyond, the Summit suspended the Tribunal and resolved that it should neither receive nor adjudicate any cases. During the SADC summit in August 2014, a Protocol on the Tribunal in the Southern African Development Community was adopted and signed (the 2014 Protocol). In terms of this Protocol the
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jurisdiction of the (new) Tribunal will be limited to inter-state disputes. Unfortunately, it also does not provide any transitional measures to address issues such as the manner to deal with pending cases and the enforcement of judgments. When it comes to the execution and enforcement of judgments, it can be argued that the 2014 Protocol is largely a replica of the original 2000 Tribunal Protocol. The reason for this is that the envisaged mechanisms to enforce the decisions of the new Tribunal is to a large extent similar to the previous one.
Unsatisfied over the non-compliance with the decision by Zimbabwe, the litigants approached the South African courts to enforce the Tribunal’s decision in South Africa.1 The South African courts found that South Africa is obliged under the SADC Treaty to take all the necessary measures to ensure that the decisions of the Tribunal are enforced, and ruled against Zimbabwe. However, the decision is yet to be enforced.
The non-compliance with the judgments and a lack of mechanisms to enforce the decisions of the Tribunal, are crucial issues as they undermine the authority of the Tribunal. This thesis explores whether the Tribunal acted within its mandate in receiving and hearing a human rights case. It further considers whether, in the absence of a human rights mandate, the Tribunal enjoys implied powers under international law to invoke the powers necessary for the fulfilment of the objectives set out in the Treaty. It also reviews the concept of state sovereignty and the extent to which it has been affected by human rights norms post-World War II; regionalism; and globalisation.
An important aspect examined, is the relationship between SADC Community law and the national law of member states. The relationship between national courts and the Tribunal also receives attention. Ultimately, the discourse addresses compliance and enforcement of the Tribunal’s decisions in the context of international law. To the extent relevant, I draw on other regional (the European Court of Justice) and sub-regional (the ECOWAS Community Court of Justice, and the East African Court of Justice) courts to establish how they have dealt with human rights jurisdiction and the enforcement of their judgments.
Mon, 01 Feb 2016 00:00:00 GMThttp://hdl.handle.net/10500/210742016-02-01T00:00:00Z